Citation NR: 9634500
Decision Date: 12/02/96 Archive Date: 12/13/96
DOCKET NO. 94-17 365 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to service connection for the cause of the
veteranís death.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and C.P.
ATTORNEY FOR THE BOARD
Brian P. Tierney, Associate Counsel
INTRODUCTION
The veteran served on active duty for over 27 years,
separating from service in June 1968.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that the regional office
(RO) erred when it denied her claim for service connection
for the cause of the veteranís death. The appellant contends
that the veteran, her husband, died from asbestosis
contracted by exposure to asbestos during his many years on
active duty.
DECISION OF THE BOARD
The Board of Veteransí Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. ß 7104 (West 1991 & Supp.
1996), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the claim of service connection for the cause of
the veteranís death is not well grounded.
FINDINGS OF FACT
1. The veteran died on October [redacted], 1991 at the age
of 70.
2. According to the Certificate of Death, the cause of the
veteranís death was respiratory failure and chronic
obstructive lung disease
3. At the time of the veteranís death, service connection
had not been established for any disease or disorder.
4. No competent evidence has been submitted diagnosing the
veteran with asbestosis or linking the veteranís fatal
chronic obstructive lung disease with any incident,
occurrence, or exposure while the veteran was on active duty.
CONCLUSION OF LAW
The claim of entitlement to service connection for the cause
of the veteranís death is not well grounded. 38 U.S.C.A.
ß 5107 (West 1991 & Supp. 1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question that must first be resolved with
regard to a claim is whether there has been evidence
presented that the claim is well grounded. See 38 U.S.C.A.
ß 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990). A well grounded claim is a plausible claim, one that
appears to be meritorious. See Murphy, 1 Vet.App. at 81. An
allegation of service connection is not sufficient; there
must be evidence in support of the claim that would ďjustify
a belief by a fair and impartial individual that the claim is
plausible.Ē See 38 U.S.C.A. ß 5107(a); Tirpak v. Derwinski,
2 Vet.App. 609, 611 (1992).
The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue
presented by the claim. Grottveit v. Brown, 5 Vet.App. 91,
92-93 (1993). According to the applicable laws and
regulations, service connection for the cause of a veteranís
death requires evidence that a disability incurred in or
aggravated by service was the principal or contributory cause
of death. See 38 U.S.C.A. ß 1310 (West 1991); 38 C.F.R.
ß 3.312(a) (1995).
The United States Court of Veterans Appeals (Court) has held,
where a question is factual in nature, e.g., whether an
incident or injury occurred in service, competent lay
testimony, including the veteranís solitary testimony, may
constitute sufficient evidence to establish a well grounded
claim; however, if the determinative issue is one of medical
etiology or a medical diagnosis, competent medical evidence
must be submitted to make the claim well-grounded. See
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A lay person
is not competent to make a medical diagnosis or to relate a
medical disorder to a specific cause. See Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992). However, where the
issue does not require medical expertise, lay testimony may
be sufficient. See Layno v. Brown, 6 Vet.App. 465, 469
(1994).
If a claim is not well grounded, the Department of Veterans
Affairs (VA) is under no duty to assist the claimant in any
further development of the claim. See Grottveit at 93.
Furthermore, a claim that is not well grounded must be denied
because it does not present a question of fact or law over
which the Board has jurisdiction. See 38 U.S.C.A.
ß 7105(d)(5) (West 1991); See also Boeck v. Brown, 6 Vet.App.
14, 17 (1993).
The Board notes that the Court has held that there is some
duty to assist a claimant in the completion of the
application for benefits under 38 U.S.C.A. ß 5103(a),
depending on the particular facts in each case. Beausoleil
v. Brown, 8 Vet.App. 459 (1996); Robinette v. Brown,
8 Vet.App. 69 (1995). The facts and circumstances of this
case are such that no further action is warranted.
According to the death certificate, the veteran died on
October [redacted], 1991, from respiratory failure as a consequence
of chronic obstructive lung disease. At the time of the
veteranís death, he was not service connected for any disease
or disorder.
The appellant has contended the veteranís death was caused by
asbestosis. In essence she has contended that although the
veteranís certificate of death notes the underlying cause of
death as chronic obstructive lung disease, he was in fact
suffering from asbestosis that he contracted from exposure to
asbestos while in service.
The appellant has submitted testimony, service medical
records, and post-service private medical records in support
of her claim. The appellant contends that the veteran had
asbestosis prior to his death. She contends that various
private doctors informed her of this but they did not write
it in their records. She contends that although he smoked up
to a half a pack of cigarettes per day, the exposure to
asbestos during his active service caused his fatal
respiratory disease.
Review of the veteranís service medical records reveals no
complaint, treatment, or finding relative to chronic
respiratory problems or asbestosis. The veteranís retirement
medical examination in June 1968 noted the lungs and chest as
normal. Also at that time a chest X-ray was noted as
negative. Medical examinations throughout the veteranís
active duty reported the veteranís chest as normal. Reports
of chest X-ray or fluoroscopic examinations were all negative
except for November 1947, July 1952, September 1956, and
September 1957 which noted calcification in the right hilum
or bilaterally.
The appellant has submitted statements and hearing testimony
in support of her contentions. She testified that the
veteran was rarely sick while in service and that he first
became ill in the 1980ís. Hearing Transcript (T.) at 2-3.
In the 1980ís she reported the veteran started hacking and
walking very slowly. Id. The veteran was treated for
pneumonia of the left lower lobe in January 1989. T. at 4.
The veteran was eventually put on oxygen and a nebulizer. T.
at 5. She testified that Dr. Chessman told her that he
thought the veteran had asbestosis. T. at 6. She also noted
that Dr. Mikowski told her that the veteran definitely had
asbestosis. Id.
The records, however, which are available from Dr. Chessman
do not contain findings of asbestosis. Efforts to obtain
records from Dr. Mikowski were unsuccessful.
The appellant also submitted various material regarding
asbestos and asbestosis. The first, an excerpt from the
OPNAVINST 5100.19B titled Asbestos Control Program notes that
most symptoms of asbestos related diseases do not show up
until 10-45 years after exposure. Also submitted are medical
articles: William M. Johnson MD, Asbestos-Related Diseases:
Diagnosis, Treatment, and Prevention, Hospital Medicine,
Feb. 1987, at 86; and Council on Scientific Affairs, A
Physicianís Guide to Asbestos-Related Diseases, JAMA, 2593
(1984). Both of these articles give background on the
etiology, diagnosis, and treatment of asbestos related
diseases, including asbestosis.
Also submitted is a Peninsula Medical Center form, dated
June 19,1989, that lists admitting diagnoses of acute
exacerbation of chronic obstructive pulmonary disease, upper
respiratory infection, and asbestosis. A later document from
that facility, prepared by ďD. Cheesman, D.O.Ē dated June
23, 1989, is of record. The doctor noted the veteran was
admitted in respiratory distress. The doctor reported he
spoke with the veteranís wife, i.e. the appellant, regarding
the veteranís home environment and the possibility of moving
to the seacoast. The doctor felt that this might get the
veteran away from pollens that seemed to overload the
veteranís mucous systems and put him into worse exacerbations
of COPD. No mention or reference is made to asbestos
disease.
The veteran was again hospitalized in November 1990. He was
admitted with a diagnosis of chronic exacerbation of COPD.
Relevant discharge diagnoses were pneumonia, and chronic
obstructive airway disease. The veteran was also
hospitalized from June 1991 to August 1991 with multiple
disorders including respiratory failure, pneumonia, pleural
effusion and COPD. The veteran was discharged to his home on
oxygen. Nursing notes have been submitted regarding his care
until his death in October 1991 as noted on the certificate
of death.
The appellant simply has not submitted any competent medical
evidence relating the ultimate cause of the veteranís death
to his service. She has asserted that the veteranís exposure
to asbestos during his service caused the veteran to contract
asbestosis. The appellantís own assertions and testimony are
not considered competent evidence of a causal relationship
between the cause of the veteranís death and his active
service. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (lay person
not competent to relate a medical disorder to a specific
cause).
In addition, the appellantís assertions are not supported by
the evidence of record. A review of the post-service medical
evidence reveals only one diagnosis of asbestosis in June
1989. The diagnosis submitted is an admitting diagnosis on a
hospital admission form. Review of the records of the
veteranís treating physician during that period do not
confirm that diagnosis. Nor does review of the records
reveal subsequent diagnosis of the veteranís respiratory
disorder as asbestosis despite prolonged treatment and
repeated hospitalizations. The one diagnosis that
continually appears is COPD or chronic obstructive pulmonary
disease.
Review of the veteranís service medical records revealed
bilateral hilar calcification on several occasions. However,
there has been no evidence presented that indicates a nexus
between these findings and the veteranís death from COPD.
Absent such a nexus, a claim for service connection based on
those findings must also be found to be not well-grounded.
ORDER
The claim for service connection for the cause of the
veteranís death is denied.
JOHN E. ORMOND, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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